Lawyers for the TSA simply do not care if they are on one side of the argument today and a different side tomorrow when it suits them better.  Throughout the litigation that occurred in 2010 – 2014, in every case where people challenged the nude body scanners, the TSA stated that the fact that they are optional — because anyone can ask for a pat-down instead — is a significant factor in their constitutionality.  In one of my cases, for example, they argue that AIT isn’t so constitutionally offensive in this sentence:

“And as the D.C. Circuit has noted, a passenger may choose between AIT screening and a pat-down, ‘which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.'”

~~ Corbett v. TSA, 12-15893, Appellee Brief, pp. 28, 29,  January 28th, 2014, citing EPIC v. DHS, 653 F.3d 1, 10.

See if you can spot the difference between the TSA’s argument above from 2014, and their argument filed today in Sai v. Neffenger, a case by another individual opposed to TSA body scanners who filed an emergency motion for temporary restraining order last week.  This argument tries to explain that the TSA didn’t really issue a new rule by making the body scanners mandatory:

“Interested parties should have anticipated that TSA might require mandatory AIT screening, and thus reasonably should have filed their comments on the subject during the notice-and-comment period [in 2013].”

~~ Sai v. Neffenger, 15-2356, Opposition to Motion for Emergency TRO/PI, p. 10, December 29th, 2015 (internal citation omitted).

In other words, despite the fact that the TSA was arguing in courts across the country that there was nothing to worry about because the scanners were optional, we all should have known that eventually, the TSA would make them mandatory.

TSA, it’s not that we all didn’t know that you were going to force these machines down our throats whenever the original controversy started to die down.  It’s that you argued that you wouldn’t in court in order to get your way, and now you’ve changed your position but think the courts shouldn’t change theirs.  We’re not surprised, but we are upset, and we’re asking the courts to decline your request to retract your position without retracting the judgment that came along with it.


Fighting the TSA in court is expensive!  Want to contribute to the fight against TSA assholery? PayPal or Bitcoin: 15ftA2938sp7Mnsi8U7wYVmEtd4BRbFnkT 🙂